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TMI Blog2022 (2) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-1, who is none other than the nephew of one of the deceased. 3. The motive for the occurrence appears to be a prolonged election dispute between two groups. On the fateful day, two of the eye-witnesses were having tea. The deceased, passing the road on a two-wheeler were waylaid by the accused also travelling in two two-wheelers. Both the deceased died on the spot. The postmortem was done by PW-4 on the very same date. The First Information Report (FIR) was registered by PW-7. PW-13, 8 and 14 were the Investigating Officers. PW-13 did the substantial part of the investigation and on his transfer, the final report was filed by PW-8. Pertaining to the charge under Section 25 of the Arms Act, it was PW-14 who filed the subsequent final report. 4. Recoveries have been made from all the accused before us. In so far as Accused No.3 is concerned, on his statement the recovery was made from the custody of his wife from his house. 5. The seized articles were sent to the Forensic Science Laboratory (FSL) and a report was received. PW-10, the police constable was the one who took the arms to the laboratory. 6. On behalf of the prosecution, 14 witness have been examined while marking 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made on the following decisions in support of the aforesaid contentions: Gopal Saran v. Satyanarayana, (1989) 3 SCC 56 State of Orissa v. Prasanna Kumar Mohanty, (2009) 7 SCC 412 Santa Singh v. State of Punjab, AIR 1956 SC 526 Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 Jagir Singh v. State (Delhi Administration), 1975 Crl LJ 1009 Submissions of the State : 10.Learned counsel appearing for the State submitted that the trial court and the High Court made adequate assessment of the materials for coming to the conclusion. Merely because PWs-1 & 2 are the relatives of the deceased, their testimonies cannot be disbelieved. The courts rightly took into consideration the evidence PW-3 though turned hostile along with that of PW-13. The other witnesses also speak about the investigation. 11.The report submitted by the experts would clearly indicate that weapons recovered from the appellants were indeed used for committing the offence. There is no need to examine all the witnesses. PW-13 has clearly stated the reason for his inability to produce the injured witness, Om Prakash. In any case, the High Court has set aside the conviction under Section 307 IPC. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and aiding substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. 13.The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence. 14.Matters are necessary, concomitant material factors to prove a fact. All evidence would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case. 19.The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, we may hasten to add, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain. Appreciation of Evidence: 20.We have already indicated different classification of evidence. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. 22.On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567: "81. It is settled legal proposition that: "6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof." (Vide Bhagwan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or discrepancies are bound to occur in the statements of witnesses." Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 : (1972) SCC (Cri) 819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v. Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753], State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC 585 : (2009) 3 SCC (Cri) 1502], State of U.P. v. Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan, [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580]. 23.This Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 had already dealt with a situation where a witness after rendering testimony in line with the prosecution's version, completely abandoned it, in view of the long adjournments given permitting an act of manoeuvring. While taking note of such situations occurring with regularity, it expressed its anguish and observed that: "51. It is necessary, though painful, to note that PW 7 was examined-inchief on 30-9-1999 and was cross-examined on 25-5-2001, almost after 1 year and 8 months. The del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the reexamination. xxx xxx xxx 57. Before parting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute." Section 33 of the Indian Evidence Act: "33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held: "18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 27.The principle was reiterated by this court in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719: "21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410: 2004 SCC (Cri) Supp 105] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Related and Interested Witness: 28.A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. 29.When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591: "32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sole ground that it is partisan would invariably lead to failure of justice. No hardand- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350] , this Court held that evidence of an eyewitness who is a near relative of the victim, should be closely scrutinised but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213 : 2005 Cri LJ 2199] , this Court observed that: (SCC p. 227, para 6) "6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused." 35. The last case we need to concern ourselves is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein this Court after observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of witness: 31.A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369: "13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the 'pakodewalla', hotelwalla, shopkeeper and some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes..." (Emphasis supplied) 32.This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar, (2014) 3 SCC 401: "19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were sent and received were spoken about and explained. The appellants have neither shown any prejudice being caused by the alleged delay, nor have disputed the findings of the said report. 37.The learned counsel appearing for the appellants submitted that the investigating officer could not be cross examined further with respect to the injuries and the recoveries. We find that evidence was also let in to that extent along with the cross-examination. The High Court has considered this aspect in the correct perspective. It is very unfortunate that the investigating officer could not be produced despite the best efforts made. The reason is obvious. There are three investigating officers. The other two investigating officers have been examined including for the charge under the Arms Act. PW-13, the first investigating officer, has been examined in extenso during cross examination. It is only for the further examination he turned turtle. That per se would not make the entire case of the prosecution bad is law particularly when the final report itself cannot be termed as a substantive piece of evidence being nothing but a collective opinion of the investigating officer. The trial cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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